Terrorism and Universal Jurisdiction: Opening a Pandora's Box?

Nagle, Luz Estella

doi:10.2139/ssrn.1582432

Cited by 1 publication

(1 citation statement)

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“…The concept of general international law peremptory norms was defined in the Vienna Convention on the Law of Treaties, adopted in 1969 (Article 53) and further developed by international judiciary, state practice and legal doctrine. Despite some criticism (Brownlie, 1988), it is widely employed not only in the area of law of treaties, but more broadly in relation to issues of States' jurisdiction (Nagle, 2011) and immunities (Potesta, 2010;Caplan, 2003), in international human rights law (Bianchi, 2008;Simma & Alston, 1992), in the field of international responsibility (Weatherall, 2015;Tams & Asteriti, 2013), etc. Since 2015 the topic of jus cogens has been included into the ILC's program of work and in 2019 it adopted on first reading the Text of the draft conclusions on peremptory norms of general international law (jus cogens) (hereafter -Text of the draft conclusions on jus cogens).…”

Section: United States Of America) East Timor (Portugal V Australmentioning

confidence: 99%

The “International Community’S Interests” Element of the State of Necessity Test: Does It Make the Jus Cogens Limitation on Necessity Superfluous?

Красиков¹,

Липкина²

2019

JPL

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According to Article 25 par. 1 (b) and Article 26 of the 2001 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, the concept of general international law peremptory norms and that of interests of “the international community as a whole” play an important role in shaping the state of necessity as one of the circumstances that preclude wrongfulness of States’ conduct under general international law. The limitation on the necessity defense, placed by the international community’s interest condition contained in Article 25 par. 1 (b) of the ILC Articles, serves as a safeguard for the interests protected by the erga omnes international obligations. The concepts of erga omnes and of general international law peremptory norms differ significantly and while all the norms of the latter type give rise to obligations erga omnes, not every such obligation arises out of peremptory norms. This evidences of an autonomous role of the relevant provision of Article 25 par. 1 (b) but not of the jus cogens limitation under Article 26 in the context of the necessity defense. The present article argues that the jus cogens limitation under Article 26 plays a role largely independent from that of Article 25 par. 1 (b) since it is incorrect to see the latter as an absolute guarantee of obligations erga omnes. The present article is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).

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